KING: How the 13th Amendment didn’t really abolish slavery, but let it live on in U.S. prisons

In essence, the 13th Amendment both banned and justified slavery in one fell swoop. (Helene Vallee/Getty Images/Vetta)

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

— The 13th Amendment to the United States Constitution

Advertisement

What I am about to tell you is going to be hard for you to accept. It goes against everything we were ever taught about the history of this country. We have been duped. The history books were wrong and right under our noses one of the greatest conspiracies in American history has taken place over the past 150 years.

The 13th Amendment to the United States Constitution did not end slavery. In fact, it is the first time the word "slavery" was ever mentioned in the Constitution and it is in this amendment where it is not abolished once and for all as we were taught, but given the constitutional protection that has maintained the practice of American slavery in various forms to this very day.

It is why, right now, the largest prison strike in American history is about to enter its third week — the men and women inside of those prisons are effectively slaves. Their free or nearly free labor represents, according to Alice Speri, "a $2 billion a year industry that employs nearly 900,000 prisoners while paying them a few cents an hour in some states, and nothing at all in others.

"In addition to work for private companies, prisoners also cook, clean, and work on maintenance and construction in the prisons themselves — forcing officials to pay staff to carry out those tasks in response to work stoppages. 'They cannot run these facilities without us,' organizers wrote ahead of the strike. 'We will not only demand the end to prison slavery, we will end it ourselves by ceasing to be slaves.' "

American chattel slavery from 1619 until 1865 was an undoubtedly ugly, horrific, traumatic, oppressive, bigoted institution. This nation was literally and figuratively built on the backs of hundreds of years of free labor. After the Civil War, which was the bloodiest war in this nation's history and cost the country as many as 750,000 lives in combat, the Emancipation Proclamation effectively freed over 3 million enslaved men, women and children from forced plantation bondage. Following that, the 13th Amendment to the United States Constitution was ratified in 1865 to end the institution of slavery as we knew it. Slavery appeared to be done once and for all, but that amendment, which is still very much the law of the land today, as essential, historic and groundbreaking as it was, has a poison pill, a trapdoor, an escape clause embedded in its core. With these three words, "except as punishment," the 13th Amendment fell far short of offering the nation a full, complete and true ban of the practice of slavery. Instead, the institution shape-shifted and morphed in peculiar ways — still primarily on black backs, but inside of less offensive systems and structures which made it a much more complicated and nebulous target.

Forty-seven words. The entire 13th Amendment, one of the most well-known of our entire Constitution, is just 47 words long. It could literally fit on a Post-it note. Yet, about a third of those words aren't about ending slavery, but are shockingly about how and when slavery could receive a wink and a nod to continue. Before the 13th Amendment was ratified, scores of publications and speeches the world over were published by abolitionists describing the horrors of slavery and why the institution must die.

This nation was literally and figuratively built on the backs of hundreds of years of free labor. (Rischgitz/Getty Images)

Sen. Charles Sumner of Massachusetts, a fierce opponent of slavery, speaking before the United States Senate on April 8, 1864, made a very interesting observation in his speech.

"The dismal words 'slave' and 'slavery' do not appear in the Constitution," Sumner said.

This point, a central one in his speech advocating for what would eventually become the 13th Amendment, was made in a wider argument that the institution of slavery was not a constitutionally protected right of slaveholders.

Beyond being on shaky moral and ethical grounds, slavery, Sumner said, simply didn't have a constitutional leg to stand on and he was right. Slavery had never been mentioned, and certainly was not sanctioned by the Constitution. That's what makes the 13th Amendment subversively complex. The very thing Sumner argued as the foundation for his opposition to slavery actually disappeared when the amendment to ban slavery was finally ratified on December 18, 1865.

Other than the obvious reality that slavery was now mentioned by name in the Constitution, the 13th Amendment is also strangely where the first full legal justification was given for the practice. In essence, the 13th Amendment both banned and justified slavery in one fell swoop. It's convoluted, but, until very recently, it was primarily held up as America's ability to overcome its own faults. History has proven that to be less than truthful.

In 1940, 75 years after the 13th Amendment was issued, a "Commemoration of the 75th Anniversary of the Proclamation of the 13th Amendment to the Constitution of the United States" called "75 Years of Freedom" was held. Musical performances, art exhibits and historical artifacts were assembled in celebration of the fact that slavery had been dead and gone for generations — when, in fact, a worm was in the apple. Slavery was not dead — it had simply changed form and label.

Richard Verdugo, the senior research scientist for the National Education Association, stated in "The Making of the African American Population: The Economic Status of the Ex-Slave and Freedmen Population in Post-Civil War America, 1860-1920," that "the South, initially devastated by the war, re-emerged as Southern Conservatives took back their privileges through political re-alliance and violence. As whites took back the South, they introduced a different kind of race-based stratification system."

The very thing Charles Sumner argued as the foundation for his opposition to slavery actually disappeared when the 13th Amendment was finally ratified on December 18, 1865. (Interim Archives/Getty Images)

Verdugo's characterization of the period following slavery is accurate, but moderate and conventional. It turns out that "race-based stratification system" was less a new creation and more a 2.0 of the old system.

Advertisement

Douglas Blackmon won the Pulitzer Prize for his brilliant 2008 work, "Slavery by Another Name," in which he details how American corporations, almost immediately after the 13th Amendment was ratified, colluded with local governments to criminalize blackness in the name of profits. While the award was deserved, another man named Omar Ali-Bey, a local community activist in Cleveland who has long since passed away, was saying just as much himself a full 18 years before Blackmon.

In the Call and Post in Cleveland, Ali-Bey wrote in 1990 "the 13th Amendment says slavery is still legal. Slavery is legal in prisons. You better wake up and see this conspiracy for what it really is."

No doubt, Ali-Bey was likely viewed by many as a crackpot conspiracy theorist, but he was actually right. What he and many other Afrocentric thinkers of the 1980s and early '90s were laughed at for saying was very much true. Prison growth has been exploding for 20 straight years when Ali-Bey wrote that local op-ed, and private corporations and publicly traded companies were finding the prison industrial complex a lucrative industry.

Advertisement

By the Fall of 2000, Kim Gilmore, in an essay entitled "Slavery and Prisons - Understanding the Connections," tells the story of "a long tradition of prisoners, particularly African-American prisoners, who have used the language and narrative of slavery to describe the conditions of their imprisonment."

The 13th Amendment, less than it truly banned slavery, banned a very particular type of slavery and replaced it with new systems that effectively targeted and benefited the same people as the old systems. In 2008, Kamal Ghali, right around the same time "Slavery By Another Name" was released, wrote in the UCLA Law Review called this section of the 13th Amendment the "punishment clause" and examined the state-by-state complexities and debates around whether any protections from the 13th Amendment even apply to those who are incarcerated.

Michael Coard, a journalist and community activist in Philadelphia, writing for the Philadelphia Tribune in 2015 on the 150th Anniversary of the 13th Amendment, asked and answered, "What's the solution? , it's certainly not to abolish the 13th Amendment. Instead, it's to amend the amendment so it will say 'Slavery and involuntary servitude are hereby abolished.' Period."

Douglas Blackmon won the Pulitzer Prize for his brilliant 2008 work, “Slavery by Another Name,” in which he details how American corporations colluded with local governments to criminalize blackness in the name of profits. (AP)

Writing for the conservative National Review, Theodore Johnson stated that we should all "thank God and the GOP for the 13th Amendment" 150 years after its passing. It seems the 13th Amendment itself may actually be the bedrock of our modern day prison industrial complex, in which the United States has more people behind bars than any other country in the world. It's not even close. Considered alongside the fact that not only can imprisoned Americans not vote, but also millions who have already served their time are also denied their right to vote, it is clear this system was designed to particularly penalize one segment of this country.

In "The New Jim Crow: Mass Incarceration in the Age of Color Blindness," legal scholar Michelle Alexander skillfully shows the common threads running directly from slavery to "slavery by another name" to Jim Crow to modern America — the nefarious implications of the 13th Amendment represent a consistent thread in that tapestry.

Whether the authors of the 13th Amendment fully understood how it could one day be abused is debatable, but certainly we know the section allowing slavery to exist for those convicted of a crime was put there on purpose. I say this often, but we must resist the urge to call this current system "broken." It's not broken — it was built this way on purpose and is functioning just the way it was intended to function.

As people fight to decriminalize marijuana in America — look at who is putting money up to stop it from being legalized — police unions and private prisons are working against the reform. They are, in effect, the modern day plantation managers. Their very sustenance relies on large volumes of people being arrested and jailed for low-level drug crimes. The private prison industry grosses billions of dollars per year and spends tens of millions of that lobbying politicians to protect it. What's particularly wild is that prisons, like the plantations from a previous era, are primarily seen as a "rural growth industry," with small towns across the country actually lobbying to get a piece of the pie by having a prison built in their backyard. For them, it means employment and economic development.

All of this is more than hyperbole. This is not an overdone metaphor. Slavery never ended in this country. The 13th Amendment didn't end it, but simply forced it to change form and structure. It may look and feel different, but please understand the effects are very much the same. People in power still say those in the system deserve to be there — just like they did 150 years ago. Escaping the system, once and for all, for those who serve their time, is nearly impossible — with society doing everything it can to make a quick return to prison a painfully easy path.

What I know is this: Dismantling the system and replacing it with something truly just and fair is going to be the fight of our life.